[2018] KEHC 4793 (KLR)
The court found that the applicants had rendered legal services to the respondent, obtained taxed costs, and followed all necessary legal procedures to enforce payment. The respondent failed to pay the certified sums or appear in court despite service. The court held that mandamus is the appropriate remedy to compel...
Source-derived case information.
- Citation
- [2018] KEHC 4793 (KLR)
- Parties
- Applicant: Patrick Ochwa, Samuel Ouma & Job Weloba T/A Cootow & Associates; Respondent: County Government of Mombasa (formerly Mombasa Municipal Council)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 29 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judicial Review (mandamus)
- Outcome
- Application allowed. Order of mandamus granted.
- Judges
- AW Mwangi
- Legal Topics
- Judicial Review, Mandamus Orders, Enforcement of Decrees, Public Body Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Ochwa, Samuel Ouma & Job Weloba T/A Cootow & Associates
Applicant
County Government of Mombasa (formerly Mombasa Municipal Council)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judicial Review (mandamus)
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondent to pay the decretal sum to the applicants as certified costs for legal services rendered.
- 2 Whether the applicants have exhausted all legal processes required for enforcement of the taxed costs against the respondent.
Ratio Decidendi
The court found that the applicants had rendered legal services to the respondent, obtained taxed costs, and followed all necessary legal procedures to enforce payment. The respondent failed to pay the certified sums or appear in court despite service. The court held that mandamus is the appropriate remedy to compel a public body to fulfill its statutory duty to pay certified costs where no other effective remedy exists. Accordingly, the court issued an order of mandamus compelling the County Government of Mombasa to pay the applicants the certified sum with interest, and awarded costs of the application to the applicants.
Court Disposition
Application allowed. Order of mandamus granted.
Orders
- An order of mandamus is issued compelling the County Government of Mombasa to pay the applicants Kshs. 2,506,048.92 being certified costs for various civil suits in Mombasa High Court.
- Interest on the decretal sum shall be payable at 14% until payment in full.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC CIVIL APPLICATION NO. 29 OF 2017
IN THE MATTER OF: APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF MANDAMUS
IN THE MATTER OF: ANAPPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF MANDAMUS TO COMPEL THE RESPODENT TO PAY THE EXPARTE APPLICANTS THE DECRETAL SUM OF KSHS. 2,506,048. 92 WITH ACCRUING INTEREST OF 14% UNTIL PAYMENT IN FULL ARSING FROM VARIOUS BILL OF COSTS TAXED.
IN THE MATTER OF: ARTICLES 19, 20, 22, 23. 41, 47, 48 AND 165 OF THE CONSTITUTION.
IN THE MATER OF: THE FAIR ADMINISTRATIVE ACTIONS ACT
IN THE MATTER OF: THE ADVOCATES ACT
IN THE MATTER OF: THE CIVIL PROCEDURE ACT AND THE LAW REFORM ACT.
PATRICK OCHWA, SAMUEL OUMA & JOB WELOBA
T/A COOTOW & ASSOCIATES.......................................................EXPARTE APPLICANTS
VERSUS
THE COUNTY GOVERNMENT OF MOMBASA
FORMERLY MOMBASA MUNICIPAL COUNCIL.........................................RESPONDENT
RULING
1. The Notice of Motion dated 16th June, 2017 is premised on the provisions of Order 53 rules 3 and 4 of the Civil Procedure Rules, Sections 7(1) and (2), 1(1) (e) and (h) of the Fair Administration Action Act 2015, Sections 8 and 9 of the Law Reform Act Cap 26 of the Laws of Kenya, the inherent jurisdiction of the court and all enabling provisions of the law. It seeks the following orders:-
(i) An order of mandamus do issue compelling the County Government of Mombasa, the respondent herein, to pay the exparte applicants the total sum of Kshs. 2,506,048. 92 with interest at 14% until payment in full arising from bill of costs taxed (sic); and
(ii) Costs of the proceedings.
2. Mr. Wafula, Learned Counsel for the exparte applicants relied on the statement of facts and verifying affidavit that had been filed on 8th June, 2017 together with the chamber summons seeking leave to file the present application.
3. Counsel for the exparteapplicants informed the court that although they effected service of the application dated 16th June, 2017 the respondent had not sent its representative to court for the hearing of the application. An affidavit of service was filed to that effect. Counsel sought an order of mandamus to issue to the respondent to pay the exparte applicants Kshs. 2,506,048. 92 for legal services rendered in various matters. He submitted that the legal fees payable was taxed and certificates of costs and other documents were attached to the verifying affidavit. Copies of decree for the amounts in issue were also attached to the said affidavit sworn on 9th June, 2017.
4. In Republic vs Kenya National Examinations Council exparte Gathengi and 8 Others, Civil Appeal No. 234 of 1995, the Court of Appeal cited with approval Halsbury’s laws of England, 4th Edition, Vol. 7 P. 111 paragraph 89 thus:-
“The order of mandamus is of most extensive remedial nature and is in form of a command issuing from the High court of justice, directed to any person, corporation or inferior tribunal, requiring him or them to be do some particular thing specified which appertains to his or their office and is not in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative remedy, yet that mode of redress is less convenient, beneficial and effectual.”
5. In the present matter, the exparte applicants have gone through all the legal processes required to have the respondent pay money due and owing to them as a result of legal services rendered. The only recourse available to them due to non-payment of the amounts due was to move the court for the judicial review remedy of mandamus. Leave to file the present application had been granted by Judge P.J. Otieno on 9th June, 2017.
6. I am satisfied that the exparte applicants are entitled to the orders sought. I therefore issue an order of mandamus directed to the County Government of Mombasa compelling it to pay the exparte applicants the sum of Kshs. 2,506,048. 92 being the certified costs for various civil suits in Mombasa High Court. Interest thereon shall be payable at 14%. Costs of this application are awarded to the exparteapplicants.
DELIVERED, DATED and SIGNED at MOMBASA on this 9th day of March, 2018.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Nyabena holding brief for Mr. Wafula for the applicant
No appearance for the respondent
Mr. Oliver Musundi - Court Assistant